Ostensibly exploring the practice of law before the internet. Heck, before good highways for that matter.

Monday, September 21, 2015

Taking another look at "The Antelope", and what that might mean for us today

American slave with heavily scarred back. In 1825 the United States Supreme Court decided that slavery was against the natural law.

A United States Supreme Court case, theoretically good precedent under in general, but on a topic that's obviously been addressed by Constitutional Amendment and hence the basic problem presented is now contrary to statutory law, is provided by The Antelope. Slavery, thankfully, and far too late, was made illegal by amendment to the United States Constitution, so whatever The Antelope says about the legality of that abomination is no longer the law. But the case's other points, about the existence of natural law, and potentially the state's relation to it, remain potentially valid. Should they?

It raises some interesting questions for us today, is this era of much poorer jurisprudence (see last week's item where Judge Posner is quoted on the poor quality of legal education and of the refugee status of law professors in some instances).

First, consider The Antelope.
.

The Antelope23 U.S. (10 Wheat.) 66 (1825)

APPEAL FROM THE CIRCUIT
COURT OF GEORGIA

Syllabus

The African slave trade is contrary to the law of nature, but is not prohibited by the positive law of nations.

Although the slave trade is now prohibited by the laws of most
civilized nations, it may stall be lawfully carried on by the subjects
of those nations who have not prohibited it by municipal acts or
treaties.

The slave trade is not piracy unless made so by the treaties or statutes of the nation to whom the party belongs.

The right of visitation and search does not exist in time of peace. A
vessel engaged in the slave trade, even if prohibited by the laws of
the country to which it belongs, cannot, for that cause alone, be seized
on the high seas and brought in for adjudication in time of peace in
the courts of another country. But if the laws of that other country be
violated or the proceeding be authorized by treaty, the act of capture
is not in that case unlawful.
It seems that in case of such a seizure, possession of Africans is not a sufficient evidence of property, and that the onus probandi is thrown upon the claimant to show that the possession was lawfully acquired Africans who are first captured by a belligerent privateer, fitted
out in violation of our neutrality, or by a pirate, and then recaptured
and brought into the ports of the United States under a reasonable
suspicion that a violation of the slave trade acts was intended are not
to be restored without full proof of the proprietary interest, for in
such a case the capture is lawful.

And whether in such a case restitution ought to be decreed at all was a question on which the Court was equally divided.

Where the Court is equally divided, the decree of the court below is, of course, affirmed so far as the point of division goes.

Although a consul may claim for subjects unknown of his nation, yet
restitution cannot be decreed without specific proof of the individual
proprietary interest.

These cases were allegations filed by the Vice-Consuls of Spain and
Portugal, claiming certain Africans as the property of subjects of their
nation. The material facts were as follows:

A privateer, called the Colombia, sailing under a Venezuelan
commission, entered the port of Baltimore in the year 1819,
clandestinely shipped a crew of thirty or forty men, proceeded to sea,
and hoisted the Artegan flag, assuming the name of the Arraganta,
and prosecuted a voyage along the coast of Africa, her officers and the
greater part of her crew being citizens of the United States. Off the
coast of Africa she captured an American vessel, from Bristol, in Rhode
Island, from which she took twenty-five Africans; she captured several
Portuguese vessels, from which she also took Africans, and she captured a
Spanish vessel, called the Antelope, in which she also took a considerable number of Africans. The two vessels then sailed in company to the coast of Brazil, where the Arraganta
was wrecked and her master, Metcalf and a great part of his crew made
prisoners; the rest of the crew, with the armament of the Arraganta, were transferred to the Antelope, which, thus armed, assumed the name of the General Ramirez,
under the command of John Smith, a citizen of the United States, and on
board this vessel were all the Africans who had been captured by the
privateer in the course of her voyage. This vessel, thus freighted, was
found hovering near the coast of the United States by the revenue
cutter Dallas, under the command of Captain Jackson, and
finally brought into the port of Savannah for adjudication. The
Africans, at the time of her capture, amounted to upwards of two hundred
and eighty. On their arrival, the vessel and the Africans, were
libeled and claimed by the Portuguese and Spanish Vice-Consuls
reciprocally. They were also claimed by John Smith as captured jure belli.
They were claimed by the United States as having been transported from
foreign parts by American citizens in contravention to the laws of the
United States and as entitled to their freedom by those laws and by the
law of nations. Captain Jackson, the master of the revenue cutter,
filed an alternative claim for the bounty given by law if the Africans
should be adjudged to the United States, or to salvage if the whole
subject should be adjudged to the Portuguese and Spanish Consuls.

The court dismissed the libel and claim of John Smith. It dismissed
the claim of the United States except as to that portion of the Africans
which had been taken from the American vessel. The residue was divided
between the Spanish and Portuguese claimants.

No evidence was offered to show which of the Africans were taken from
the American vessel and which from the Spanish and Portuguese, and the
court below decreed that, as about one-third of them died, the loss
should be averaged among these three different classes, and that sixteen
should be designated by lot from the whole number and delivered over to
the Marshal according to the law of the United States as being the fair
proportion of the twenty-five proved to have been taken from an
American vessel.

MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court, and after stating the case proceeded as follows:

In prosecuting this appeal, the United States asserts no property in
itself. It appears in the character of guardian or next friend of these
Africans, who are brought, without any act of their own, into the bosom
of our country, insist on their right to freedom, and submit their
claim to the laws of the land and to the tribunals of the nation.

The Consuls of Spain and Portugal, respectively, demand these
Africans as slaves, who have, in the regular course of legitimate
commerce, been acquired as property by the subjects of their respective
sovereigns and claim their restitution under the laws of the United
States.

In examining claims of this momentous importance -- claims in which
the sacred rights of liberty and of property come in conflict with each
other, which have drawn from the bar a degree of talent and of eloquence
worthy of the questions that have been discussed -- this Court must not
yield to feelings which might seduce it from the path of duty, and must
obey the mandate of the law.

That the course of opinion on the slave trade should be unsettled
ought to excite no surprise. The Christian and civilized nations of the
world with whom we have most intercourse have all been engaged in it.
However abhorrent this traffic may be to a mind whose original feelings
are not blunted by familiarity with the practice, it has been sanctioned
in modern times by the laws of all nations who possess distant
colonies, each of whom has engaged in it as a common commercial business
which no other could rightfully interrupt. It has claimed all the
sanction which could be derived from long usage and general
acquiescence. That trade could not be considered as contrary to the law
of nations which was authorized and protected by the laws of all
commercial nations, the right to carry on which was claimed by each and
allowed by each.

The course of unexamined opinion which was founded on this inveterate
usage received its first check in America, and as soon as these states
acquired the right of self-government, the traffic was forbidden by most
of them. In the beginning of this century, several humane and
enlightened individuals of Great Britain devoted themselves to the cause
of the Africans, and by frequent appeals to the nation, in which the
enormity of this commerce was unveiled and exposed to the public eye,
the general sentiment was at length roused against it and the feelings
of justice and humanity, regaining their long lost ascendancy, prevailed
so far in the British Parliament as to obtain an act for its abolition.
The utmost efforts of the British government, as well as of that of
the United States, have since been assiduouslyemployed in its suppression. It has been denounced by both in terms of
great severity and those concerned in it are subjected to the heaviest
penalties which law can inflict. In addition to these measures
operating on their own people, they have used all their influence to
bring other nations into the same system, and to interdict this trade by
the consent of all.

Public sentiment has in both countries kept pace with the measures of
government, and the opinion is extensively if not universally
entertained that this unnatural traffic ought to be suppressed. While
its illegality is asserted by some governments but not admitted by all,
while the detestation in which it is held is growing daily, and even
those nations who tolerate it in fact almost disavow their own conduct
and rather connive at, than legalize, the acts of their subjects, it is
not wonderful that public feeling should march somewhat in advance of
strict law, and that opposite opinions should be entertained on the
precise cases in which our own laws may control and limit the practice
of others. Indeed, we ought not to be surprised if, on this novel
series of cases, even courts of justice should in some instances have
carried the principle of suppression further than a more deliberate
consideration of the subject would justify.

The Amedie, 1 Acton 240, which was an American vessel
employed in the African trade, was captured by a British cruiser and
condemned in the Vice Admiralty Court of Tortola.An appeal was prayed, and Sir William Grant, in delivering the opinion
of the court, said that, the trade being then declared unjust and
unlawful by Great Britain, The Fortuna, "a claimant could have no right, upon principles of universal law, to
claim restitution in a prize court of human beings carried as his
slaves. He must show some right that has been violated by the capture,
some property of which he has been dispossessed and to which he ought to
be restored. In this case, the laws of the claimant's country allow of
no right of property such as he claims. There can therefore be no
right of restitution. The consequence is that the judgment must be
affirmed." 1 Dodson 81, was condemned on the authority of The Amedie, and the same principle was again affirmed.

The Diana, 1 Dodson 95, was a Swedish vessel captured with a
cargo of slaves by a British cruiser and condemned in the Court of Vice
Admiralty at Sierra Leone. This sentence was reversed on appeal, and
Sir William Scott, in pronouncing the sentence of reversal, said "The condemnation also took place on a principle which this Court
cannot in any manner recognize, inasmuch as the sentence affirms 'that
the slave trade, from motives of humanity, hath been abolished by most
civilized nations and is not at the present time legally authorized by
any.' This appears to me to be an assertion by no means sustainable."

The ship and cargo were restored on the principle that the trade was allowed by the laws of Sweden.

The principle common to these cases is that the legality of the
capture of a vessel engaged in the slave trade depends on the law of the
country to which the vessel belongs. If that law gives its sanction to
the trade, restitution will be decreed; if that law prohibits it, the
vessel and cargo will be condemned as good prize.

This whole subject came on afterwards to be considered in The Louis,
2 Dodson 238. The opinion of Sir William Scott in that case
demonstrates the attention he had bestowed upon it and gives full
assurance that it may be considered as settling the law in the British
courts of admiralty as far as it goes.

The Louis was a French vessel, captured on a slaving voyage
before she had purchased any slaves, brought into Sierra Leone, and
condemned by the Vice Admiralty court at that place. On an appeal to
the Court of Admiralty in England, the sentence was reversed.

In the very full and elaborate opinion given on this case, Sir
William Scott in explicit terms lays down the broad principle that the
right of search is confined to a state of war. It is a right, strictly
belligerent in its character, which can never be exercised by a nation
at peace except against professed pirates, who are the enemies of the
human race. The act of trading in slaves, however detestable, was not,
he said, "the act of freebooters, enemies of the human race, renouncing
every country and ravaging every country in its coasts and vessels
indiscriminately." It was not piracy.

He also said that this trade could not be pronounced contrary to the law of nations. "A court, in the administration of law, cannot attribute criminality
to an act where the law imputes none. It must look to the legal
standard of morality, and upon a question of this nature that standard
must be found in the law of nations as fixed and evidenced by general
and ancient and admitted practice by treaties and by the general tenor
of the laws and ordinances and the formal transactions of civilized
states, and, looking to those authorities, he found a difficulty in
maintaining that the transaction was legally criminal."

The right of visitation and search being strictly a belligerent
right, and the slave trade being neither piratical nor contrary to the
law of nations, the principle is asserted and maintained with great
strength of reasoning that it cannot be exercised on the vessels of a
foreign power unless permitted by treaty. France had refused to assent
to the insertion of such an article in her treaty with Great Britain,
and consequently the right could not be exercised on the high seas by a
British cruiser on a French vessel.
"It is pressed as a difficulty," says the judge,
"what is to be done if a French ship laden with slaves is brought in.
I answer without hesitation, restore the possession which has been
unlawfully devested; rescind the illegal act done by your own subject,
and leave the foreigner to the justice of his own country."
This reasoning goes far in support of the propositionthat in the British courts of admiralty, the vessel even of a nation
which had forbidden the slave trade, but had not conceded the right of
search, must, if wrongfully brought in, be restored to the original
owner. But the judge goes further and shows that no evidence existed to
prove that France had by law forbidden that trade. Consequently, for
this reason as well as for that previously assigned, the sentence of
condemnation was reversed and restitution awarded.
In the United States, different opinions have been entertained in the
different circuits and districts, and the subject is now, for the first
time, before this Court.

The question whether the slave trade is prohibited by the law of
nations has been seriously propounded, and both the affirmative and
negative of the proposition have been maintained with equal earnestness.

That it is contrary to the law of nature will scarcely be denied.
That every man has a natural right to the fruits of his own labor is
generally admitted, and that no other person can rightfully deprive him
of those fruits and appropriate them against his will seems to be the
necessary result of this admission. But from the earliest times, war
has existed, and war confers rights in which all have acquiesced. Among
the most enlightened nations of antiquity, one of these was that the
victor might enslave the vanquished. This, which was the usage of all,
could not be pronounced repugnant to the law of nations, which is
certainly to be tried by the test of general usage. That which has received the assent of all must be the law of all.

Slavery, then, has its origin in force; but as the world has agreed
that it is a legitimate result of force, the state of things which is
thus produced by general consent cannot be pronounced unlawful.

Throughout Christendom, this harsh rule has been exploded, and war is
no longer considered as giving a right to enslave captives. But this
triumph of humanity has not been universal. The parties to the modern
law of nations do not propagate their principles by force, and Africa
has not yet adopted them. Throughout the whole extent of that immense
continent, so far as we know its history, it is still the law of nations
that prisoners are slaves. Can those who have themselves renounced
this law be permitted to participate in its effects by purchasing the
beings who are its victims?

Whatever might be the answer of a moralist to this question, a jurist
must search for its legal solution in those principles of action which
are sanctioned by the usages, the national acts, and the general assent
of that portion of the world of which he considers himself as a part and
to whose law the appeal is made. If we resort to this standard as the
test of international law, the question, as has already been observed,
is decided in favor of the legality of the trade. Both Europe and
America embarked in it, and for nearly two centuries it was carried on
without opposition and without censure. A jurist could not say that a practice thus supported was illegal and that those
engaged in it might be punished either personally or by deprivation of
property.

In this commerce, thus sanctioned by universal assent, every nation
had an equal right to engage. How is this right to be lost? Each may
renounce it for its own people, but can this renunciation affect others?

No principle of general law is more universally acknowledged than the
perfect equality of nations. Russia and Geneva have equal rights. It
results from this equality that no one can rightfully impose a rule on
another. Each legislates for itself, but its legislation can operate on
itself alone. A right, then, which is vested in all by the consent of
all can be devested only by consent, and this trade, in which all have
participated, must remain lawful to those who cannot be induced to
relinquish it. As no nation can prescribe a rule for others, none can
make a law of nations, and this traffic remains lawful to those whose
governments have not forbidden it.

If it is consistent with the law of nations, it cannot in itself be
piracy. It can be made so only by statute, and the obligation of the
statute cannot transcend the legislative power of the state which may
enact it.

If it be neither repugnant to the law of nations nor piracy, it is
almost superfluous to say in this Court that the right of bringing in
for adjudication in time of peace, even where the vessel belongs to a
nation which has prohibited the trade,cannot exist. The courts of no country execute the penal laws of
another, and the course of the American government on the subject of
visitation and search would decide any case in which that right had been
exercised by an American cruiser on the vessel of a foreign nation, not
violating our municipal laws, against the captors.

It follows that a foreign vessel engaged in the African slave trade,
captured on the high seas in time of peace by an American cruiser and
brought in for adjudication, would be restored.

The general question being disposed of, it remains to examine the circumstances of the particular case.

The Antelope, a vessel unquestionably belonging to Spanish
subjects, was captured while receiving a cargo of Africans on the coast
of Africa by the Arraganta, a privateer which was manned in
Baltimore and is said to have been then under the flag of the Oriental
republic. Some other vessels, said to be Portuguese, engaged in the
same traffic, were previously plundered and the slaves taken from them
as well as from another vessel then in the same port were put on board
the Antelope, of which vessel the Arraganta took
possession, landed her crew, and put on board a prize master and prize
crew. Both vessels proceeded to the coast of Brazil, where the Arraganta was wrecked and her captain and crew either lost or made prisoners.

The Antelope, whose name was changed to the General Ramirez after an ineffectual attempt to sell the Africans on board at Surinam, arrived off the coast of
Florida and was hovering on that coast near that of the United States
for several days. Supposing her to be a pirate or a vessel wishing to
smuggle slaves into the United States, Captain Jackson, of the revenue
cutter Dallas, went in quest of her, and finding her laden with
slaves, commanded by officers who were citizens of the United States,
with a crew who spoke English, brought her in for adjudication.

She was libeled by the Vice Consuls of Spain and Portugal, each of
whom claim that portion of the slaves which were conjectured to belong
to the subjects of their respective sovereigns, which claims are opposed
by the United States on behalf of the Africans.
In the argument, the question on whom the onus probandi is
imposed has been considered as of great importance, and the testimony
adduced by the parties has been critically examined. It is contended
that the Antelope, having been wrongfully dispossessed of her
slaves by American citizens and being now, together with her cargo, in
the power of the United States, ought to be restored without further
inquiry to those out of whose possession she was thus wrongfully taken.
No proof of property, it is said, ought to be required. Possession is
in such a case evidence of property.

Conceding this as a general proposition, the counsel for the United
States deny its application to this case. A distinction is taken
betweenmen, who are generally free, and goods, which are always property.
Although with respect to the last possession may constitute the only
proof of property which is demandable, something more is necessary where
men are claimed. Some proof should be exhibited that the possession
was legally acquired. A distinction has been also drawn between
Africans unlawfully taken from the subjects of a foreign power by
persons acting under the authority of the United States and Africans
first captured by a belligerent privateer or by a pirate and then
brought rightfully into the United States, under a reasonable
apprehension that a violation of their laws was intended. Being
rightfully in the possession of an American court, that court, it is
contended, must be governed by the laws of its own country, and the
condition of these Africans must depend on the laws of the United
States, not on the laws of Spain and Portugal.

Had the Arraganta been a regularly commissioned cruiser,
which had committed no infraction of the neutrality of the United
States, her capture of the Antelope must have been considered
as lawful, and no question could have arisen respecting the rights of
the original claimants. The question of prize or no prize belongs
solely to the courts of the captor. But having violated the neutrality
of the United States and having entered our ports not voluntarily, but
under coercion, some difficulty exists respecting the extent of the
obligation to restore, on the moreproof of former possession, which is imposed on this government

If, as is charged in the libels of both the consuls as well as of the
United States, she was a pirate hovering on the coast with intent to
introduce slaves in violation of the laws of the United States, our
treaty requires that property rescued from pirates shall be restored to
the Spanish owner on his making proof of his property.

Whether the General Ramirez, originally the Antelope,
is to be considered as the prize of a commissioned belligerent ship of
war unlawfully equipped in the United States, or as a pirate, it seems
proper to make some inquiry into the title of the claimants.
In support of the Spanish claim, testimony is produced showing the documents under which the AntelopeArraganta.
sailed from the Havana on the voyage on which she was captured; that
she was owned by a Spanish house of trade in that place; that she was
employed in the business of purchasing slaves, and had purchased and
taken on board a considerable number when she was seized as prize by the

Whether, on this proof, Africans brought into the United States under
the various circumstances belonging to this case ought to be restored
or not is a question on which much difficulty has been felt. It is
unnecessary to state the reasons in support of the affirmative or
negative answer to it, because the Court is divided on it, and
consequently no principle is settled. So much of the decree of the
circuit court as directsrestitution to the Spanish claimant of the Africans found on board the Antelope when she was captured by the Arraganta is affirmed.

There is some difficulty in ascertaining their number. The libel
claims one hundred and fifty as belonging to Spanish subjects, and
charges that one hundred or more of these were on board the Antelope. Grondona and Ximenes, Spanish officers of the Antelope
before her capture, both depose positively to the number of one hundred
and sixty-six. Some deduction, however, is to be made from the weight
of Grondona's testimony, because, he says in one of his depositions that
he did not count the slaves on the last day when some were brought on
board, and adds that he had lost his papers and spoke from memory and
from the information he had received from others of the crew after his
arrival in the Havana. Such of the crew as were examined concur with
Grondona and Ximenes as to numbers.

The depositions of the Spanish witnesses on this point are opposed by those of John Smith, the Captain of the General Ramirez, and William Brunton, one of the crew of the Arraganta,Antelope. who was transferred to the

John Smith deposes that ninety-three Africans were found on board the Antelope
when captured who he believes to have been Spanish property. He also
says, that one hundred and eighty-three were taken out of Portuguese
vessels.

William Brunton deposes that more slaves were taken out of the Portuguese ship than were in any other, and that
ninety-odd were represented by the crew to have been on board the Antelope when she was captured.

If to the positive testimony of these witnesses we add the inference
to be drawn from the statement of the libel and the improbability that
so large a number of Africans as are claimed could have been procured
under the circumstances in which the Antelope was placed
between the 13th, when she was liberated by the first pirate who seized
her, and the 23d, when she was finally captured, we are rather disposed
to think the weight of testimony is in favor of the smaller number. But
supposing perfect equality in this respect, the decision ought, we
think, to be against the claimant.

Whatever doubts may attend the question whether the Spanish claimants
are entitled to restitution of all the Africans taken out of their
possession with the Antelope, we cannot doubt the propriety of
demanding ample proof of the extent of that possession. Every legal
principle which requires the plaintiff to prove his claim in any case
applies with full force to this point, and no countervailing
consideration exists. The onus probandi as to the number of
Africans which were on board when the vessel was captured unquestionably
lies on the Spanish libellants. Their proof is not satisfactory beyond
ninety-three. The individuals who compose this number must be
designated to the satisfaction of the circuit court.

We proceed next to consider the libel of the Vice-Consul of Portugal.
It claims one hundred and thirty slaves or more, "all of whom, as the
libellant is informed and believes," are the property of a subject or
subjects of his Most Faithful Majesty, and although "the rightful owners
of such slaves be not at this time individually and certainly known to
the libellant, he hopes and expects soon to discover them."

John Smith and William Brunton, whose depositions have already been
noticed, both state that several Africans were taken out of Portuguese
vessels, but neither of them states the means by which he ascertained
the national character of the vessels they had plundered. It does not
appear that their opinions were founded on any other fact than the flag
under which the vessels sailed. Grondona also states the plunder of a
Portuguese vessel lying in the same port and engaged in the same traffic
with the Antelope when she was captured, but his testimony is
entirely destitute of all those circumstances which would enable us to
say that he had any knowledge of the real character of the vessel other
than was derived from her flag. The cause furnishes no testimony of any
description, other than these general declarations, that the
proprietors of the Africans now claimed by the Vice-Consul of Portugal
were the subjects of his King; nor is there any allusion to the
individuals to whom they belong. These vessels were plundered in March,
1820, and the libel was filed in August of the same year. Fromthat time to this, a period of more than five years, no subject of the
Crown of Portugal has appeared to assert his title to this property,; no
individual has been designated as its probable owner. This inattention
to a subject of so much real interest, this total disregard of a
valuable property, is so contrary to the common course of human action
as to justify serious suspicion that the real owner dares not avow
himself.

That Americans and others who cannot use the flag of their own nation
carry on this criminal and inhuman traffic under the flags of other
countries is a fact of such general notoriety that courts of admiralty
may act upon it. It cannot be necessary to take particular depositions
to prove a fact which is matter of general and public history. This
long and otherwise unaccountable absence of any Portuguese claimant
furnishes irresistible testimony that no such claimant exists and that
the real owner belongs to some other nation and feels the necessity of
concealment.

An attempt has been made to supply this defect of testimony by
adducing a letter from the secretary to whose department the foreign
relations of Portugal are supposed to be entrusted suggesting the means
of transporting to Portugal those slaves which may be in the possession
of the vice-consul as the property of his fellow subjects. Allow to
this document all the effect which can be claimed for it and it can do
no more than supply the want of an express power from the owners of the slaves to receive them. It cannot be considered
as ascertaining the owners or as proving their property.

The difficulty, then, is not diminished by this paper. These
Africans still remain unclaimed by the owner or by any person professing
to know the owner. They are rightfully taken from American citizens
and placed in possession of the law. No property whatever in them is
shown. It is said that possession, in a case of this description, is
equivalent to property. Could this be conceded, who had the possession?
From whom were they taken by the Arraganta? It is not
alleged that they are the property of the Crown, but of some individual.
Who is that individual? No such person is shown to exist, and his
existence after such a lapse of time cannot be presumed.

The libel, which claims them for persons entirely unknown, alleges a state of things which is prima facie
evidence of an intent to violate the laws of the United States by the
commission of an act which according to those laws entitles these men to
freedom. Nothing whatever can interpose to arrest the course of the
law but the title of the real proprietor. No such title appears, and
every presumption is against its existence.
We think, then, that all the Africans now in possession of the
Marshal for the District of Georgia and under the control of the circuit
court of the United States for that district which were brought in with
the Antelope, otherwise called the General Ramirez,
except those which may be designated as the property of the Spanish
claimants ought to be delivered up to the United States to be disposed
of according to law. So much of the sentence of the circuit court as is
contrary to this opinion is to be

Reversed, and the residue affirmed.

DECREE. This cause came on to be heard, &c., on consideration
whereof this Court is of opinion that there is error in so much of the
sentence and decree of the said circuit court as directs the restitution
to the Spanish claimant of the Africans in the proceedings mentioned in
the ratio which one hundred and sixty-six bears to the whole number of
those which remained alive at the time of pronouncing the said decree,
and also in so much thereof as directs restitution to the Portuguese
claimant, and that so much of the said decree ought to be reversed, and
it is hereby reversed and annulled. And this Court, proceeding to give
such decree as the said circuit court ought to have given, doth DIRECT
and ORDER that the restitution to be made to the Spanish claimant, shall
be according to the ratio which ninety-three (instead of one hundred
and sixty-six) bears to the whole number, comprehending as well those
originally on board the Antelope as those which were put on board that vessel by the Captain of the Arraganta.
After making the apportionment according to this ratio and deducting
from the number the ratable loss which must fall on the slaves to which
the Spanish claimants were originally entitled, the
residue of the said ninety-three are to be delivered to the Spanish
claimant on the terms in the said decree mentioned, and all the
remaining Africans are to be delivered to the United States, to be
disposed of according to law, and the said decree of the said circuit
court is in all things not contrary to this decree affirmed.

John Marshall, author of the opinion in The Antelope. He's regarded, justifiably, as one of the greatest of American jurists, but did he get this right?

So, there you have the sad story of the ship, The Antelope, and its sad charges. Africans carried away from home against their will and condemned to live out the balance of their lives as slaves, far from their homes and their desires.

And a legal case with surprising language, and to some extent, a surprising result. What does the Supreme Court decision tell us?

Well, it tells us the following.

1. In 1825, a full forty years prior to the end of the Civil War, a war we fought principally over slavery (yes, I know, states rights, etc., well that isn't what the war was about. . . it was about human bondage) the United States Supreme Court acknowledged the slavery was:

A. Contrary to Natural Law, and;

B. Immoral but;

C. Legal under the laws of men.

Note what's significant in that. At that point in time, when the knowledge of lawyers included not only the law, but the origin and nature of law, the Supreme Court acknowledged a natural law. Not some mushy evolving standard of law based upon some vague octogenarian's discerning of public intent, but a real basis in nature.

Only slightly less significant, the Justices found that the laws of nations could and in this case did override that natural law.

German defendants at the Nuremberg trials, each of whom could claim that their actions, no matter how heinous, were authorized by law. Their claims were rejected.

Let's leap forward to 1945. And the Nuremberg Trials.

Now a person may ask why, but again, there's a good reason. We're now dealing with natural law again, but on a national scale.

During the Nuremberg trials, the victorious Allies tried individuals who had served the Axis powers for various crimes against humanity. The fact that these crimes were legal under the laws of those nations did not a provide a defense. That is, a person could not claim, in their defense (although they frequently tried to do so, that "I was ordered to do it". That defense was actually a legally sufficient one up until that time, for the most part, and squares well with the holding of The Antelope. Yes, mass murder and imprisonment of millions based on their race or behavior is immoral, but it wasn't illegal under the laws of the state. It was illegal, rather, as it failed to comport with the principals of Natural Law.

So, starting in 1945, we reversed the view held by the United States Supreme Court in 1825. That is, we started saying that Natural Law is the highest law, where as the Supreme Court had said that Natural Law is the highest law, but a Court could not base a decision upon it in the face of contrary statutory law.

So what does that have to do with anything today?

How do you feel?

Was the U.S. Supreme Court wrong in 1825? It could have held that a Natural Law was supreme against all other law, and a law contrary to nature was no law at all. Politically, that would have been problematic in 1825 to say the least, as it would have feed the slaves throughout the country, and the Supreme Court likely knew that it couldn't effect that in 1825. Still, as a moral and legal proposition, it could have said that.

The Allies did say that in 1945. Where they right? Is a person bound by the Natural Law above all other law?

It's an interesting and relevant question today. In Obegefell Justice Kennedy and his fellows ignored any discussion of Natural Law, even though its clearly relevant to the topic they had at hand, and the most frequently discussed aspect of the topic that decision addresses in serious circles of debate. Indeed, he didn't really hold to anything much than a mushy standards of "we know where things are headed". But that doesn't make the Natural Law question go away, and now it places it in the forefront.

Has the Nuremberg Defense, "following orders", now been adopted by the American judiciary as a mandate. I.e., you must follow orders, as we've decreed, even if you have serious Natural Law objections? And if so, where does that lead us in the future. Will future Syrian butchers be able to avoid trial, as "my state ordered me to do this?".

Was The Antelope wrongly decided, and for those with moral convictions on the topic did the decision resolve them because it was a legal decision?

"The Lord Is My Shepherd", painting of an American slave.

Interesting questions, directly impacting real people's lives. At the end of the day, the subject of The Antelope was people. And the decision essentially overrode an acknowledged superior body of law in favor of what the Court seemed to acknowledge was an immoral national law. The Court went for statutory law over a great Natural Law. In 1945, we decided that a greater Natural Law bound all others. What position do we hold now?

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Lex Anteinternet?

This blog has been around since 2009. In the very first post, we asked the question: "What the heck is this blog about?"

Our answer to the question was: "The intent of this blog is to try to explore and learn a few things about the practice of law prior to the current era. That is, prior to the internet, prior to easy roads, and the like. How did it work, how regional was it, how did lawyers perceive their roles, and how were they perceived?"

We also noted: "Part of the reason for this, quite frankly, has something to do with minor research for a very slow moving book."

All of this is still true, but the focus of the blog has changed somewhat. It now focuses on the era from 1890 to 1920 in general, rather than on the law and lawyers specifically, although that may be far from obvious. It's also become the location where we comment on anything we feel moved to comment on.

We hope you'll feel moved to comment as well. While we moderate every comment, so as to weed out Spam, we greatly appreciate the comments where they are offered, and hope to see more.

On This Day In Wyoming History

In addition to being the frequent blogger here, I'm also the author of On This Day In Wyoming History, a book cataloging the daily history of Wyoming. More on that book can be discovered by following the link.

I'm also the author of a number of articles that have been published by various journals, including The Wyoming Lawyer and Rural Heritage. Topics of my published articles range from legal and agricultural topics to historical topics.